The claimant’s mother and the NH were married until the NH’s death in December 2010. During their marriage, the Claimant was born in March 2008. Under the North Dakota Law, a man is presumed to be the father of a child if he and the child’s mother are married. In this case, as the presumed legitimate child of the NH, the Claimant had inheritance rights for the purposes of determining eligibility for child survivor’s benefits. Also, under the North Dakota law, the presumption of paternity may be rebutted only by an adjudication of paternity and the evidence presented does not rebut the NH’s presumed paternity or suggest that the Claimant’s mother obtained benefits for Claimant based on fraud or similar fault. Therefore, the Claimant is entitled to child survivor’s benefits on the record of the NH.

Question Presented

You asked us to determine if L~ is properly entitled to child survivor’s benefits on the record of the late W~ based on the submission of evidence rebutting the presumption of paternity.

Short Answer

Yes. L~ is entitled to survivor’s benefits on the record of the late W~ because, under North Dakota law, W~ is the presumptive father. And, the evidence submitted does not rebut the presumption. Further, L~’s entitlement may be revisited only if the criteria for reopening are met, which would require a showing of fraud or similar fault.

Background

V~ married W~ on June xx, 1995, and was married to him until he died on December XX, 2010. During their marriage, V~ gave birth to L~ on March XX, 2008. Following W~’s death, V~ applied for child survivor’s benefits on L~’s behalf and L~ was awarded such benefits with a notice of award, dated January XX, 2011, and an effective date of December 2010.

It is alleged that V~ actually conceived L~ with K~, not W~. A sanitized memorandum of an interview by the Bureau of Indian Affairs (BIA) references an affair and an online DNA test kit, but the names of involved parties are redacted. Indeed, in the BIA interview, an unidentified individual reported that (1) he had an affair with V~ while she was married to W~; and (2) V~ had the unidentified individual complete a DNA test, which indicated that he was the biological father of L~. It is alleged that K~ is the unidentified individual.

All parties reside in North Dakota.

Discussion

Reopening

As an initial matter, it is important to note that L~ is already receiving benefits. In order to revisit the question of paternity, the determination regarding her entitlement would have to be reopened. Given the amount of time that has passed since the initial determination (the award notice was dated January XX, 2011), this matter can only be reopened if the determination was obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c) (providing bases for reopening at any time). Fraud or similar fault would include:

• •

  Concealing or failing to disclose a material fact for use in determining rights to benefits;

• •

  Knowingly making an incorrect or incomplete statement that is material to the determination; or

• •

  Knowingly concealing information that is material to the determination.

POMS GN04020.010.A.

As discussed in more detail below, there is only hearsay evidence that V~ believed K~ was L~’s biological father. This is likely insufficient to establish the existence of fraud or similar fault by a preponderance of the evidence, as required. POMS GN04020.010.A.6. Presently, the matter is simply a “He said/She said” situation without evidence to make any credibility determinations.

Presumption of Paternity

Entitlement to child benefits turns on the question of paternity, which is resolved under state law. See 42 U.S.C. 416(h)(2)(A); 20 C.F.R. §§ 404.350, 404.355; Program Operations Manual System (POMS) GN00306.001.C (“State laws concerning presumption of legitimacy . . . apply in determining the status of a child born during wedlock.”). Under North Dakota law, a man is presumed to be the father of a child if “[h]e and the mother of the child are married to each other and the child is born during the marriage.” N.D. Cent. Code § 14-20-10; see also; POMS GN 00306.585.A.1.a. Thus, under North Dakota law, W~ is presumed to be L~’s father. As the presumed legitimate child of W~, L~ had inheritance rights for the purposes of determining eligibility for child survivor’s benefits. See N.D. Cent. Code §§ 30.1-4-04-14(5), 30.1-04-15 (father-child relationship may be established under presumption of paternity); 20 C.F.R. § 404.355; POMS GN 00306.010.B.

Under North Dakota law, the presumption of paternity may be rebutted only by an adjudication of paternity. N.D. Cent. Code § 14-20-10. To initiate such an action more than two years after the birth of a child, there must be a showing that (1) “[t]he presumed father and mother of the child neither cohabitated nor engaged in sexual intercourse with each other during the probable time of conception” and (2) “the presumed father never openly held out the child as his own.” N.D. Cent. Code § 14-20-42. If this threshold showing is made, the paternity of a presumed father may be disproved only with admissible results of genetic testing (and other clear and convincing evidence), which either excludes the presumed father or identifies another man as the father of the child. N.D. Cent. Code § 14-20-52. To be admissible, among other requirements, the genetic tests must be performed by an accredited laboratory and establish a reliable chain of custody of the genetic specimens. N.D. Cent. Code §§ 14-20-25–35.

In the present case, the evidence presented falls far short of this standard. First, the allegation that W~ was not L~’s biological father is based entirely on hearsay reports—i.e., second- or third-hand reports of what V~ stated — which are generally inadmissible in trial proceedings. There is no information suggesting that W~ and V~ were not cohabiting or engaged in sexual relations at the time of probable conception, nor is there information suggesting that W~ did not hold L~ out as his own child. No actual genetic test results were submitted—let alone tests that would conform to the rigorous statutory requirements. The single hearsay allegation does not correspond with the requirements for rebutting a presumption of paternity.

If this matter is to be further investigated, the following issues should be inquired into:

1. (1) 

   Is there evidence sufficient to create a strong impression (i.e., that makes it more likely than not) that V~ knew that W~ was not L~’s father? See below (2)(b).

2. (2) 

   Is there conclusive evidence that W~ is not L~’s father? For example:

   1. a. 

      Is there genetic testing, sufficient to satisfy the rigors of N.D. Cent. Code §§ 14-20-25 to 14-20-35, showing that W~ could not be L~’s father?

   2. b. 

      If genetic testing is conflicting or inconclusive, (i) is there evidence showing W~ was sterile at the time L~ must have been conceived; (ii) is there evidence that W~ was constantly absent from V~ the whole period within which L~ must have been conceived; (iii) is there evidence that W~ was present with V~ only under circumstances which made sexual relations impossible; or (iv) is there evidence that V~ was living in adultery continuously during the time L~ must have been conceived and there was no evidence of access by W~?

If both questions (1) and (2) are answered in the affirmative, reopening might be appropriate.

Conclusion

L~ is entitled to child survivor’s benefits on the record of the late W~ because under North Dakota law W~ is the presumptive father. Presently, the evidence submitted does not rebut W~’s presumed paternity or suggest that V~ obtained benefits for L~ based on fraud or similar fault.